EXHIBIT 2.1
TERMINATION AGREEMENT
AND GENERAL RELEASE
Termination Agreement and General Release (this "Release") dated
November 21, 1996 by and among DSP Communications, Inc., a Delaware corporation
("DSPC"), Data Merger Corporation, a Delaware corporation and a wholly-owned
subsidiary of DSPC ("Sub"), and Proxim, Inc., a Delaware corporation ("Proxim").
WHEREAS, DSPC, Sub and Proxim have entered into an Agreement and Plan
of Merger dated as of October 28, 1996 (the "Merger Agreement"); and
WHEREAS, in the opinion of the Board of Directors of DSPC there is a
substantial risk that the stockholders of DSPC would not approve the Merger
Agreement and the transactions contemplated thereby as required by
Section 8.1(c) of the Merger Agreement; and
WHEREAS, Section 9.1(a) of the Merger Agreement provides that it may
be terminated by mutual written consent duly authorized by the Boards of
Directors of DSPC and Proxim; and
WHEREAS, the Boards of Directors of DSPC and Proxim have determined
that it is in the best interests of DSPC and Proxim and their respective
stockholders to terminate the Merger Agreement on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth herein, the parties hereto agree as follows:
1. The Merger Agreement is hereby terminated pursuant to Section 9.1(a)
thereof with such termination to have the effect set forth in
Section 9.2 of the Merger Agreement except as otherwise set forth in
this Release and except that, notwithstanding anything to the contrary
in the Merger Agreement, the provisions of Section 9.3 of the Merger
Agreement shall not survive termination of the Merger Agreement.
2. DSPC shall make payment to Proxim of $3,450,000 within thirty days of
the date hereof by wire transfer to an account specified by Proxim or
cashier's check.
3. Except as set forth in Section 9.2 of the Merger Agreement, each of
the parties hereto on behalf of its agents, representatives, heirs,
partners, attorneys, employees, successors and assigns and any persons
acting by, through, under or in concert with each of them or any of
them hereby completely releases and forever discharges the other
parties hereto, their parents, affiliated and subsidiary corporations,
and their present and former stockholders, officers, directors,
agents, employees, attorneys, successors and assigns from all claims,
rights, demands, actions, obligations, liabilities, and causes of
action of any and every kind, nature and character whatsoever, known
or unknown, which such party may now have or may in the future have
arising from or in any way related to the Merger Agreement, including,
without limitation, the termination thereof, whether based on tort,
contract (express or
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implied) or any federal, state or local law statute or regulation
(hereinafter the "Released Matters"); provided however, that this
Release does not release or discharge DSPC or Proxim from its
obligations under this Release.
4. It is understood and agreed that the preceding paragraph is a full and
final release covering all known as well as all unknown or
unanticipated debts, claims, or damages to the parties hereto arising
from or in any way related to the Merger Agreement, including without
limitation, the termination thereof. Therefore, each of the parties
hereto waives any and all rights or benefits which it may now have, or
in the future may have, under the terms of Section 1542 of the
California Civil Code which provides as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in their favor at the time of
executing the release, which if known by them must have
materially affected their settlement with the debtor.
Each of the parties expressly waives and relinquishes any rights it
may have under Civil Code 1542 or any other statute or common law
principle with a similar effect. In connection with such waiver and
relinquishment, DSPC and Proxim acknowledge that they or their
attorneys or agents may hereafter discover claims or facts in addition
to or different from those which they now know or believe to exist
with respect to the Released Matters, but that it is their intention
hereby fully, finally and forever to settle and release all of the
Released Matters. In furtherance of this intention, the releases
herein given shall be and remain in effect as full and complete mutual
releases notwithstanding the discovery or existence of any such
additional or different claim or fact.
5. In the event of any breach or default of this Release, the
non-breaching party shall have all rights and remedies provided by law
and equity to enforce this Release including, without limitation, an
action for damages and to obtain specific performance of the terms of
this settlement.
6. DSPC and Proxim acknowledge that they have been represented by counsel
of their choice and this Release has been executed with the consent
and on the advice of such legal counsel. Each of them further
acknowledges that they and their counsel have had an adequate
opportunity to make whatever investigation or inquiry they deemed
necessary or desirable in connection with the subject matter of this
Release prior to the execution thereof.
7. Each party agrees not to disparage the other party in connection with
the termination of the Merger Agreement.
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8. MISCELLANEOUS
8.1. GOVERNING LAW. The internal laws of the State of California
(irrespective of its choice of law principles) will govern the
validity of this Release, the construction of its terms and the
interpretation and enforcement of the rights and duties of the
parties hereto.
8.2. ASSIGNMENT BINDING UPON SUCCESSORS AND ASSIGNS. Neither party
hereto may assign any of its rights or obligations hereunder
without the prior written consent of the other party hereto.
This Release will be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted
assigns.
8.3. SEVERABILITY. If any provision of this Release, or the
application thereof, will for any reason and to any extent be
invalid or unenforceable, the remainder of this Release and
application of such provision to other persons or circumstances
will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such void
or unenforceable provision of this Release with a valid and
enforceable provision that will achieve, to the greatest extent
possible, the economic, business and other purposes of the void
or unenforceable provision.
8.4. COUNTERPARTS. This Release may be executed in any number of
counterparts, each of which will be an original as regards any
party whose signature appears thereon and all of which together
will constitute one and the same instrument. This Release will
become binding when one or more counterparts hereof, individually
or taken together, will bear the signatures of all the parties
reflected hereon as signatories.
8.5. AMENDMENT AND WAIVERS. Any term or provision of this Release may
be amended, and the observance of any term of this Release may be
waived (either generally or in a particular instance and either
retroactively or prospectively) only by a writing signed by the
party to be bound thereby. The waiver by a party of any breach
hereof or default in the performance hereof will not be deemed to
constitute a waiver of any other default or any succeeding breach
or default.
8.6. ATTORNEYS' FEES. Should suit be brought to enforce or interpret
any part of this Release, the prevailing party will be entitled
to recover, as an element of the costs of suit and not as
damages, reasonable attorneys' fees to be fixed by the court
(including, without limitation, costs, expenses and fees on any
appeal). The prevailing party will be entitled to recover its
costs of suit, regardless of whether such suit proceeds to final
judgment.
8.7. CONSTRUCTION OF RELEASE. This Release has been negotiated by the
respective parties hereto and their attorneys and the language
hereof will not be construed for or against either party. A
reference to a Section or an exhibit will mean a
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Section in, or exhibit to, this Release unless otherwise
explicitly set forth. The titles and headings herein are for
reference purposes only and will not in any manner limit the
construction of this Release which will be considered as a whole.
8.8. FURTHER ASSURANCES. Each party agrees to cooperate fully with
the other parties and to execute such further instruments,
documents and agreements and to give such further written
assurances as may be reasonably requested by any other party to
evidence and reflect the transactions described herein and
contemplated hereby and to carry into effect the intents and
purposes of this Release.
8.9. ENTIRE AGREEMENT. This Release constitutes the entire
understanding and agreement of the parties hereto with respect to
the subject matter hereof and supersedes all prior and
contemporaneous agreements or understandings, inducements or
conditions, express or implied, written or oral, between the
parties with respect hereto except as expressly set forth herein.
The express terms hereof control and supersede any course of
performance or usage of the trade inconsistent with any of the
terms hereof.
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IN WITNESS WHEREOF, each of DSPC, Sub and Proxim has caused this
Release to be executed on its behalf by its officers thereunto duly authorized,
all as of the date first above written.
DSP COMMUNICATIONS, INC.
By: /s/ XXXXXX XXXX
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Name: Xxxxxx Xxxx
Title: Chairman of the Board
DATA MERGER CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: President
PROXIM, INC.
By: /s/ XXXXX XXXX
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Name: Xxxxx Xxxx
Title: Chairman of the Board, President and
Chief Executive Officer
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